When does qualifying period start

[mushyhuz]

Hi all,

I'm currently engaged in a furious argument on a forum where the people on there have a misunderstanding that you could count your qualifying period based on the date of application of their first ever Tier 2 visa and hence applying 28 before they would have completed 5 years to that date.

My understanding has been that the qualifying period is always calculated from the date of visa approval / date of entry into the uk / vignette entry sticker date and NOT the date of application of 1st tier 2 visa.

Am I the one whos wrong? and if so does anyone have evidence/ guidance where this is mentioned?

regards

[CR001]

Unsure why you are arguing about this when you already hold ILr.

https://www.gov.uk/government/publicati ... pplication

Period between the issue of entry clearance and entering the UK
The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK count towards the 180 days allowable absence in the continuous 12-month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.

If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

People confuse the below paragraph as meaning from date of first application. However they don't read it properly, it clearly says "counting backwards", or applying for ilr counting backwards and the date of application can be used.

Calculating the specified continuous period
Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period.

You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:

the date of application

the date of decision

any date up to 28 days after the date of application

[mushyhuz]

Thanks CR001

I initially tried to help this person out, but then its got to a point where I couldn't allow this persons ignorance to spread to others on the same forum.

And the points you highlighted is exactly the reason the other person thinks its from the first visa application date. Tried to explain the sentence in simple english, yet hes not convinced!

Either way I'm happy I'm right now and I shall just have to move on from the matter.

[zimba]

The date of an initial application is obviously not relevant, the date of ILR is. It would be odd to argue otherwise.

See: indefinite-leave-to-remain/calculating- ... l#p2091622

[mushyhuz]

The date of an initial application is obviously not relevant, the date of ILR is. It would be odd to argue otherwise.

See: indefinite-leave-to-remain/calculating- ... l#p2091622

There is a whole Facebook group run by some individuals where the moderator has posted that you could apply based using your 1st tier 2 application date as the start of your qualifying period

[mushyhuz]

The date of an initial application is obviously not relevant, the date of ILR is. It would be odd to argue otherwise.

See: indefinite-leave-to-remain/calculating- ... l#p2091622

So I received an update the argument used is from the Continous residence guidance document and I must admit, it is a compelling one!

When absences will count towards the 180 day limit
Any period spent outside of the UK will count towards the 180 days absence. This includes any period:
• when their permission remained valid
• while an entry clearance application is under consideration
• before they entered the UK, once entry clearance had been granted
….
: Page 28 of 37 Published for Home Office staff on 11 August 2022: https://assets.publishing.service.gov.u ... t_2022.pdf

[secret.simon]

@mushyhuz, you could point them towards this section on the page preceding the one that they quoted above.

Counting the continuous residence period
Where a person is applying for settlement as soon as they qualify you will need to calculate their period of continuous residence. See Check immigration history section of this guidance on how to calculate the period of continuous residence.

In these instances, you must establish the date the applicant was granted entry clearance. The time between the grant of entry clearance and the date of arrival is a period during which they had permission on that route and should be treated as a period of lawful residence. In these instances, you must establish the date the applicant entered the UK. The time between the grant of entry clearance and the date they entered the UK counts towards the total of absences.

I suspect (but I can't be sure) that the highlighted entry is for applicants applying on the 10 year Long Residence route, when it comes to computing their absences if they left the UK before the end of one visa and made a fresh entry clearance application within the prescribed period.

[zimba]

The date of an initial application is obviously not relevant, the date of ILR is. It would be odd to argue otherwise.

See: indefinite-leave-to-remain/calculating- ... l#p2091622

So I received an update the argument used is from the Continous residence guidance document and I must admit, it is a compelling one!

When absences will count towards the 180 day limit
Any period spent outside of the UK will count towards the 180 days absence. This includes any period:
• when their permission remained valid
• while an entry clearance application is under consideration
• before they entered the UK, once entry clearance had been granted
….
: Page 28 of 37 Published for Home Office staff on 11 August 2022: https://assets.publishing.service.gov.u ... t_2022.pdf

That is again a total misunderstanding and incorrect misinterpretation of the rules. The highlighted part actually refers to a scenario when there was a period of absence BETWEEN two periods of lawful residence and NOT the beginning.

E.g. A migrant with a valid visa leaves the UK and while outside the UK, his visa runs out. He applies within 14 days of visa expiry for a new entry clearance in line with paragraph 39E of the rules and waits 3 months to get a new entry clearance. He flies back to the UK with his new visa. Despite not having a visa for 3 months and having a gap of 3 months between two periods of leave, his continuous lawful residence will be assumed unbroken for the purpose of ILR. Note that the time spent waiting while an entry clearance application was under consideration should count towards the 180 days absence limit.

I hope this clears the part you highlighted. Also, note that the rules and guides must be read in their full context rather than just picking out a single sentence from a guide and running with it.

[mushyhuz]

That is again a total misunderstanding and incorrect misinterpretation of the rules. The highlighted part actually refers to a scenario when there was a period of absence BETWEEN two periods of lawful residence and NOT the beginning.

E.g. A migrant with a valid visa leaves the UK and while outside the UK, his visa runs out. He applies within 14 days of visa expiry for a new entry clearance in line with paragraph 39E of the rules and waits 3 months to get a new entry clearance. He flies back to the UK with his new visa. Despite not having a visa for 3 months and having a gap of 3 months between two periods of leave, his continuous lawful residence will be assumed unbroken for the purpose of ILR. Note that the time spent waiting while an entry clearance application was under consideration should count towards the 180 days absence limit.

I hope this clears the part you highlighted. Also, note that the rules and guides must be read in their full context rather than just picking out a single sentence from a guide and running with it.

I agree with what you say, but there is nothing to explicitly say that the scenario refers only to periods between two lawful periods of residence and its not meant to be used for the begining? I'm sorry for pushing this further, its just that they keep insisting my understanding is wrong and what emphatic proof that its not intepreted to the beginning of the application.

[zimba]

That is not how the rules work. As I said the rules must be interpreted as a whole and many things are implied and not explicitly mentioned. A gap in the beginning (between the application date and grant of leave) cannot be counted as lawful continuous residence as per the rules. A gap between the lawful periods on the other hand can be, as I showed. What you highlighted is mentioned regarding absences but nothing is there to say such a period is considered lawful residence at all. There is nothing in the rules that such an interpretation can be made. Needless to say, the qualifying period for ILR is counted from ILR application date and backwards, not from the beginning

[secret.simon]

@mushyhuz, sometimes, when dealing on public forums, all one can do is present a case and then withdraw. I would suggest that you do not get too invested in advising on those forums if they are unwilling to listen to your advice (and our advice by proxy).

We are anonymous people on a website who are offering advice that will not affect us.

At the end of the day, it is the applicant who will have to put up the money and lose it if their understanding of the Rules is wrong. That is the person who will get actually hurt if they lose their fees. And I would advise that person to adopt the strictest interpretation that is against them. Because if they comply with such an interpretation, there will be little cause for refusal.

But again, for you, let it go. You have given your own and our advice and it is time to let it go and move on with your life.

[mushyhuz]

thank you both. really sound advice!